Wyoming second amendment financial privacy act.

23LSO-0698
2023
STATE OF WYOMING
23LSO-0698
Numbered
2.0

SENATE FILE NO. SF0171

Wyoming second amendment financial privacy act.

Sponsored by: Senator(s) Laursen, D, Biteman, Brennan, Hutchings, Ide and Salazar and Representative(s) Berger, Haroldson, Knapp, Niemiec, Singh, Tarver and Wylie

A BILL

for

AN ACT relating to banks, banking and finance; providing legislative findings; prohibiting disclosure or use of protected information relating to firearms and ammunition sales as specified; prohibiting discrimination related to firearm sales codes as specified; providing exceptions; providing requirements for disclosure; authorizing civil actions; providing definitions; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.

(a)

The legislature finds that:

(i)

The second amendment to the United States constitution guarantees the people the right to keep and bear arms;

(ii)

In September of 2022, the world's three (3) largest payment card networks publicly announced they would assign a unique merchant category code to firearms retailers accepting payment cards for purchases, after twenty
‑
eight (28) members of Congress sent a public letter to networks, pressuring them to adopt the new code;

(iii)

In the letter to payment card networks, federal lawmakers stated that the new merchant category code for firearms retailers would be "the first step towards facilitating the collection of valuable financial data that could help law enforcement in countering the financing of terrorism efforts", expressing a clear government expectation that networks will utilize the new merchant category code to conduct mass surveillance of constitutionally protected firearms and ammunition purchases in cooperation with law enforcement;

(iv)

The new merchant category code will allow banks, payment card networks, acquirers and other entities involved in payment card processing to identify and separately track lawful payment card purchases at firearms retailers in this state, paving the way for unprecedented surveillance of second amendment activity and information sharing between financial institutions and the government;

(v)

This potential for cooperative surveillance and tracking of lawful firearms and ammunition purchases will have a significant chilling effect on citizens wishing to exercise their federal and state constitutional rights to keep and bear arms in this state;

(vi)

While federal law requires some financial institutions to report transactions that are highly indicative of money laundering or other unlawful activities, there is no federal or state law authorizing financial institutions to surveil and track lawful activities by customers in cooperation with law enforcement. The federal Right to Financial Privacy Act prohibits financial institutions from disclosing a customer's financial records except in limited circumstances;

(vii)

This act shall be construed as a generally applicable consumer financial protection law that does not prevent or significantly interfere with the duly authorized powers of any bank, nor does this article directly or indirectly discriminate against any bank based on its charter or structure; and

(viii)

Based on the above stated findings, it is the intent of the legislature to prohibit the misuse of payment card processing systems to surveil, report or otherwise discourage constitutionally protected firearm and ammunition purchases and sales within this state.

Section 2.

W.S. 1
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39
‑
122 and 13
‑
10
‑
401 through 13
‑
10
‑
406 are created to read:

1
‑
39
‑
122.

Liability; financial privacy.

A governmental entity is liable for damages resulting from a violation of W.S. 13
‑
10
‑
405 or 13
‑
10
‑
406(a) caused by the negligent, reckless or intentional acts of public employees while acting within the scope of their duties.

ARTICLE 4
SECOND AMENDMENT FINANCIAL PRIVACY

13
‑
10
‑
401.

Definitions.

(a)

As used in this article:

(i)

"Assign" or "assignment" means a financial institution policy, process or practice that labels, links or otherwise associates a firearms code with a merchant or payment card transaction in a manner that allows the financial institution or any other entity facilitating or processing the payment card transaction to identify whether a merchant is a firearms retailer or whether a transaction involves the sale of firearms or ammunition;

(ii)

"Customer" means any person who presents a payment card to a merchant for the purchase of goods or services;

(iii)

"Customer's protected financial information" means the protected financial information appearing in the financial records of a customer;

(iv)

"Disclosure" means the transfer, publication or distribution of protected financial information to another person for any purpose other than to process or facilitate a payment card transaction;

(v)

"Financial institution" means an entity other than a merchant involved in facilitating or processing a payment card transaction, including but not limited to a bank, acquirer, gateway, payment card network or payment card issuer;

(vi)

"Financial record" means a financial record held by a financial institution related to a payment card transaction that the financial institution has processed or facilitated;

(vii)

"Firearms retailer" means any person engaged in the lawful business of selling or trading firearms or ammunition to be used in firearms;

(viii)

"Firearms code" means any code or other indicator a financial institution assigns to a merchant or to a payment card transaction that identifies whether a merchant is a firearms retailer or whether the payment card transaction involves the purchase of a firearm or ammunition.

The term shall include but is not limited to a merchant category code assigned to a retailer by a payment card network or other financial institution;

(ix)

"Government entity" means any state agency or political subdivision or agency thereof, located in this state;

(x)

"Merchant" means a person or entity that accepts payment cards from customers for the purchase of goods or services.

The term shall include a firearms retailer that accepts payment cards for the lawful purchase of firearms or ammunition;

(xi)

"Payment card" means a credit card, charge card, debit card or any other card that is issued to an authorized card user and that allows the user to purchase goods or services from a merchant; and

(xii)

"Protected financial information" means any record of a sale, purchase, return or refund involving a payment card that is retrieved, characterized, generated, labeled, sorted or grouped based on the assignment of a firearms code;

(xiii)

"This act" means W.S. 13
‑
10
‑
401 through 13
‑
10
‑
406.

13
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10
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402.

Disclosure of financial information prohibitions; exceptions.

(a)

A financial institution shall not disclose a customer's protected financial information and a government entity shall not access or obtain the information unless:

(i)

Otherwise required by law and the protected financial information is not singled out, segregated or disclosed based on the assignment of a firearms code;

(ii)

Disclosure is made pursuant to a valid warrant issued in a criminal investigation, stating the grounds or probable cause for its issuance;

(iii)

The customer has provided written authorization for disclosure, as provided in W.S. 13
‑
10
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403; or

(iv)

Disclosure is made pursuant to a subpoena or to a grand jury subpoena.

13
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10
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403.

Disclosure authorized.

(a)

A financial institution may disclose a customer's protected financial information if the customer provides the financial institution with written authorization for the disclosure.

The written authorization described by this section shall contain the following:

(i)

A statement that the customer consents to the disclosure of the protected financial information for a specific period;

(ii)

A statement that the customer has the right to refuse to consent to disclosure;

(iii)

A statement that the customer understands his or her right to revoke the consent at any time before the protected financial information is disclosed;

(iv)

A description of the financial records authorized to be disclosed;

(v)

The purpose for which disclosure of the protected financial information is authorized; and

(vi)

The customer's signature.

(b)

The written authorization described in this section shall not be required as a condition of doing business or transacting with any financial institution.

(c)

The written authorization required by this section shall be executed distinctly and separately from other agreements or instruments entered into between the customer and financial institution.

13
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10
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404.

Subpoena requirements.

(a)

If a subpoena issued by a government entity requires disclosure of a customer's protected financial information, a financial institution shall only disclose the information if the subpoena meets the following requirements:

(i)

The subpoena must state that protected financial information is being sought;

(ii)

In addition to service on the financial institution, a copy of the subpoena shall be served on the customer and the subpoena shall contain a certification that the service was executed on the customer.

13
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10
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405.

Discriminatory conduct.

(a)

A financial institution shall not use a firearms code to engage in the following discriminatory conduct:

(i)

Declining a lawful payment card transaction based on the assignment of a firearms code to the merchant or transaction;

(ii)

Limiting or declining to do business with a customer, potential customer or merchant based on the assignment of a firearms code to previous lawful transactions involving the customer, potential customer or merchant;

(iii)

Charge a higher transaction or interchange fee to any merchant or for a lawful transaction, as compared to the fee charged to a similarly situated merchant or for a similar transaction, based on the assignment of a firearms code; or

(iv)

Take any action against a customer or merchant that is intended to suppress lawful commerce involving firearms or ammunition.

13
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10
‑
406.

Civil actions.

(a)

A customer may bring a civil action for damages against any financial institution or government entity that causes the customer's protected financial information to be disclosed in violation of this act.

For each violation, the customer may recover:

(i)

Against any person who negligently or recklessly violates this act, damages of ten thousand dollars ($10,000.00) or actual damages, whichever is greater; and

(ii)

Against any person who intentionally violates this act, damages of twenty
‑
five thousand dollars ($25,000.00) or actual damages, whichever is greater.

(b)

A customer or merchant aggrieved by a violation of W.S. 13
‑
10
‑
405 may bring a civil action for damages.

The customer or merchant may recover damages of thirty thousand dollars ($30,000.00) or actual damages, whichever is greater.

(c)

If pursuant to a lawsuit filed under subsections (a) or (b) of this section a court finds that a violation of this act has occurred, the court shall award reasonable attorney fees to the aggrieved party.

A court may order other relief, including an injunction, as the court considers appropriate.

Section 3.

W.S. 1
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39
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104(a) is amended to read:

1
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39
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104.

Granting immunity from tort liability; liability on contracts; exceptions.

(a)

A governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by W.S. 1
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39
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105 through 1
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39
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112
or 1
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39
‑
122
. Any immunity in actions based on a contract entered into by a governmental entity is waived except to the extent provided by the contract if the contract was within the powers granted to the entity and was properly executed and except as provided in W.S. 1
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39
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120(b). The claims procedures of W.S. 1
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39
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113 apply to contractual claims against governmental entities.

Section 4
.

This act is effective July 1, 2023
.

(END)

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SF0171